Court denies challenger’s appeal in Upshur sheriff race

By Lawrence Smith | Oct 25, 2012

CHARLESTON – An Upshur County attorney’s bid to be the next sheriff has come to a close.

The state Supreme Court on Oct. 24 denied David D. Taylor’s appeal challenging the Upshur County Commission’s certification of the May 8 primary results for sheriff. In challenging the certification, Taylor, who placed second in the three-person Republican primary, contended then-Chief Deputy Sheriff Michael R. Kelley’s candidacy was illegal under the Hatch Act.

The Hatch Act is a federal law that prohibits not only federal, but also county and municipal employees whose positions receive federal funding, from running for elected office.

In July, the Commission denied Taylor’s challenge finding that Kelley’s candidate did not violate anti-corruption language in state statutes dealing with civil service employees because chief deputies are exempt from it. Also, they determined since Kelley resigned from office after winning the primary, his vacancy could be filled by the county Republican executive committee.

Following his appeal to Upshur Circuit Court, Senior Status Berkeley Circuit Judge Thomas W. Steptoe , who was appointed to hear the case after Judge Thomas H. Keadle recused himself, last month said the 2007 revision to the state code Taylor cited was unclear as whether the chief deputy was a civil service employee. In his ruling, Steptoe relied on a 1975 attorney general’s opinion that chief deputies are not considered civil service employees, and therefore did not have to resign to run for sheriff.

In his appeal to the Court filed Oct. 3, Taylor said both the Commission and Steptoe erred in basing their decisions on the attorney general’s opinion. Chief deputies are considered civil service employees, Taylor argued, not only because a 1992 revision to section 13 of the deputy sheriff’s civil service statute extends all “rights and benefits” to chief deputies, but also the 2007 rewrite of section 15 contains a provision that any deputy subject to the Hatch Act may not run for office.

In its two-page unsigned opinion, the Court did not address any of the issues Taylor raised on appeal. Instead, the Court cited its opinions in the 1992 case of State ex. rel. Harden v. Hechler and the 1898 case of State ex. rel Depue v. Matthews that the runner-up in a contested primary election, particularly for county sheriff, does not, be default, become the party’s nominee.

“Regardless of whether that statutory provision [7-14-15(a)(4)] applies to chief deputy sheriffs, petitioner is not entitled to the relief he seeks here,” the Court said. “Our case law is clear that the disqualification of a candidate with the highest number of votes does not inure to the benefit of any other candidate.”

Following the decision, Taylor’s attorney Charles Crooks said while he respects it, the Court missed an opportunity to clarify a murky area of the law.

“The central issue in David Taylor’s case was whether W.Va. Code § 7-14-15 (2007) disqualifies actively-serving chief deputies from campaigning for public office,” Crooks said. “The Upshur County Commission said this question was unclear and held against my client, so we appealed.

“I understand elections in 39 West Virginia counties would have been guided by a decision on the proper application of this statute,” he added. “I was hoping David’s case would be the vehicle for bringing clarity to this issue, but the Court declined to address it in today’s decision.

West Virginia Supreme Court of Appeals case number 12-1153

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